Brooklyn National Bank v. Incorporated Village of Rockville Centre

243 A.D. 775

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 15, 1935
• Status: Published

Opinion

Appeal from order granted on motion of other defendants, which vacated an order of examination of one party defendant, entered without opposition on his part, on the ground that notice of the application for the order was not given to the other defendants as required by section 292 of the Civil Practice Act. The record shows that oral notice of the examination was given to the attorney for these respondents, and that an attorney in their behalf appeared on the examination, made no protest and participated in the examination, which was then adjourned until a later date. It was then that the motion to vacate was made. In their brief respondents deny in part the facts just stated. On the facts stated in the record, there was waiver of the procedural error. Order reversed on the law and the facts, with ten dollars costs and disbursements, and motion denied, with ten dollars costs; examination to proceed on five days’ notice. The respondents are granted leave, if so advised, to move at Special Term to limit the scope of the examination if they are able to establish that their rights will be prejudiced. Young, Carswell, Tompkins, Davis and Johnston, JJ., concur.